Delaware IP Law Blog

In two consolidated actions, Magistrate Judge Mary Pat Thynge recently issued a Memorandum Order construing the term “promotional code” in U.S. Patent Nos. 5,717,866, entitled “Method for comparative analysis of consumer response to product promotions,” and 5,924,078, entitled “Consumer-provided promotional code actuatable point-of-sale discounting system.” Codepro Innovations LLC v. Safeway Inc., C.A. No. 12-970-MPT and Codepro Innovations LLC v. The Stop & Shop Supermarket Company LLC, et al., C.A. No. 12-1482-MPT, at 1 (D. Del. May 14, 2013). The parties had requested early claim construction for this term. Id.

Judge Thynge construed this term as “a series of publicly distributed or advertised characters associated with discount information corresponding to a product or products.” Id. at 18.

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In Collarity, Inc. v. Google, Inc., C.A. No. 11-1103-MPT (D. Del. May 6, 2013), Magistrate Judge Mary Pat Thynge recently construed the following disputed claim terms of U.S. Patent No. 7,756,855, entitled “Search Phrase Refinement by Search Term Replacement:”

-“keyword,” id. at 4-8;

-“association graph,” id. at 8-10;

-“anchor keyword/non-anchor keyword,” id. at 10-12;

-“designating, by the search system, one or more keywords as anchor keywords and the remaining keywords as non-anchor keywords,” id. at 12-14;

-“order of steps,” id. at 14-19.

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Magistrate Judge Mary Pat Thynge recently issued a report recommending that a motion to dismiss allegations of direct, induced, and contributory infringement relating to cloud-based gaming applications be denied. T5 Labs (Delaware) LLC v. Gaikai, Inc., C.A. No. 12-1281 (SLR) (MPT) (D. Del. Apr. 5, 2012). The defendant argued that the complaint failed to provide meaningful notice of which products or services were accused, but Judge Thynge disagreed, explaining that the plaintiff adequately identified the defendant's "‘cloud’-based gaming applications and service’ or GPU cloud as the infringing method or product.” Id. at 9. This, together with sufficient allegations of jurisdiction, ownership, notice, and a demand for relief, was sufficient to provide the defendant with meaningful notice of the allegations against it, and met the requirements of Form 18 for alleging direct infringement. Id. at 10. Judge Thynge also found that the plaintiff adequately pled induced and contributory infringement under Twombly and Iqbal with respect to post-Complaint conduct. Id. at 11-13.

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In Masimo Corporation v. Philips Electronics North American Corporation, et al., C.A. Nos. 09-080-LPS-MPT & 11-742-LPS-MPT (Cons.) (D. Del. Apr. 2, 2013), Magistrate Judge Mary Pat Thynge issued a report and recommendation regarding Daubert and summary judgment motions from both parties. The case involves a number of patents related to “pulse oximetry,” which “allows for non-invasive measurement of the oxygen levels in a medical patient’s hemoglobin.” Id. at 1. At the time of the Court’s opinion, seven patents were at issue from the original action filed, plus two patents from a second action filed by plaintiff; six were plaintiff’s patents, and three were defendants’ for which they had counterclaimed infringement. Id. at 4-5.

The motions for summary judgment for which the Court issued recommendations related to infringement, noninfringement, invalidity, and laches. Id. at 6 & n. 22 (noting that the other motions before the Court would be addressed in another opinion). The Court denied the majority of these motions, finding that genuine issues of material fact remained. See, e.g., id. at 17, 23, 58-60, 75, 77, 85, 87, 115-16, 140, 146-47. As to defendant’s motion for summary judgment based on laches with respect to three patents, defendants alleged that a series of negotiations with third parties and with defendants, and lawsuits with third parties, all relating to plaintiff’s technology, put plaintiff on notice as to potential infringement more than six years preceding the filing of the lawsuit with respect to two out of the three patents. See id. at 178-81. While the Court agreed that defendants had established the necessary six-year presumption of laches for these two patents, id. at 189-91, it concluded that plaintiff had presented evidence that rebutted the presumption. First, litigation with another entity over one of the three patents “provid[ed] justification for [plaintiff] not pursuing [defendant] on that patent” while that action was pending. Id. at 193. Second, there was an issue of material fact as to whether negotiations related to the potential infringement of defendants’ technology would have resolved the infringement issues. Id. at 195. In response, defendants argued that they had suffered economic prejudice as a result of plaintiff’s delay in filing because they had expanded their use of the potentially infringing products, but plaintiffs demonstrated “through statements from [defendants’] executives that an earlier lawsuit would not have affected [defendants’] business plans.” Accordingly, issues of material fact were raised “as to whether a nexus exists between [defendants’] economic change an [plaintiff’s] delay. Id. at 198. The Court therefore denied defendants’ motion, finding it unnecessary to address plaintiff’s unclean hands argument. Id.

The Court granted the following motions for summary judgment:

-Defendants’ motion for summary judgment of invalidity, based on the written description requirement, as to two claims of U.S. Patent No. 6,263,222. The Court concluded that plaintiff’s patent did not show that the inventors possessed the claimed subject matter: these claims “speak of a signal processor generically; its specification, however, only describes correlation canceler techniques, and [plaintiff’s expert] admits at the time of the invention only correlation cancellation techniques were known to one skilled in the art. . . . nothing in [the claims] or the specification constitute an adequate description of all signal processors for use in a non-correlation canceler. Therefore, [defendants’] motion for summary judgment on written description is granted.” Id. at 29-30.

-Defendants’ motion for summary judgment of invalidity, based on the written description requirement, as to U.S. Patent No. 6,699,194. Defendants, relying on the specification itself and the testimony of the inventor, argued that the specification in plaintiff’s patent did not disclose certain methods in the claims because it did not “disclose any method of estimating pulse rate from an unclean spectrum” – it only disclosed “classifying clean spectral data.” Id. at 121 (emphasis added). The Court agreed. Id. at 129.

-Defendants’ motion for summary judgment of noninfringement of U.S. Patent No. 7,215,984. The Court concluded that some of plaintiff’s expert’s statements on the issue were inconsistent with her other testimony, and plaintiff “should not be able to create a question of fact to defeat summary judgment via [its expert’s] new declaration if it contradicts her prior testimony.” Id. at 69 & n.322.

-Plaintiff’s motion for summary judgment of noninfringement of U.S. Patent No. 6,122,535 (“the ‘535 patent”). First, while the Court did not grant plaintiff’s motion as to literal infringement “in light of the manner in which the parties’ presented their arguments,” id. at 199, it concluded that defendants were precluded from relying on the doctrine of equivalents. Plaintiff demonstrated that: (i) defendants’ infringement contentions would eliminate an element of claim 1, id. at 155; (ii) the way in which defendants had distinguished its patent from prior art during prosecution demonstrated prosecution history estoppel, id. at 156, 158; and (iii) the ‘535 patent contained disclosed but unclaimed embodiments, id. at 162. Second, the Court granted plaintiff’s motion as to direct infringement because defendants had not shown that every step of method claim 1 of the ‘535 patent had actually been performed; “that [plaintiff’s] products may be capable of performing the claimed method is not enough.” Id. at 167 (emphasis added). As a result, plaintiff was neither a direct nor indirect infringer. Id. at 165-66.

As to plaintiff’s Daubert motion, plaintiff argued defendants’ expert on infringement and validity with respect to U.S. Patent No. 6,725,074 (“the ‘074 patent”) was not qualified to opine on “fuzzy logic,” which was a central aspect of the ‘074 patent. Id. at 90 & n.424. This expert had no formal education or training in fuzzy logic, but defendants argued that because he was “qualified as an expert in the field of digital signal processing, source code and medical devices, and this field includes the technology disclosed in the ‘074 patent, namely, the use of uncertain and fuzzy logic software applications in medical devices,” he possessed “at least ordinary skill in the art” such that he could “provide helpful testimony on how software using uncertain and fuzzy logic works within the devices at issue.” Id. at 91 (internal citations and quotation marks omitted). The Court agreed and denied plaintiff’s motion. Id. at 91-92. In doing so, the Court distinguished case law in which an expert was unqualified because that expert did not have knowledge about the relevant field of technology, had “other significant deficiencies,” and had not properly addressed the issue of a person of ordinary skill in the art. Id. at 93-94. Here, defendants’ expert’s qualifications, in light of plaintiff’s own description of a person of ordinary skill in the art, was appropriate. Id. at 94-95.

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In ImageVision.Net, Inc. v. Internet Payment Exchange, Inc., C.A. No. 12-054-GMS-MPT (D. Del. Feb. 25, 2013), Magistrate Judge Thynge issued a report recommending denial of defendant’s renewed motion to stay pending inter partes reexamination. Defendant had previously moved for a stay pending reexamination and in September 2012 Judge Thynge had recommended denial of that motion, discussed here. Chief Judge Sleet adopted that part of the recommendation. Id. at 2. At the time of this first motion to stay, the PTO had not granted the request for reexamination, but it did in December 2012 and "preliminarily rejected" all of the claims of the patent-in-suit. Id. at 2, 10. Defendant then renewed its motion to stay pending the reexamination. Id. Judge Thynge again recommended denial of defendant’s motion. Id. at 16.

Because the case was filed after the America Invents Act ("AIA") was enacted, Judge Thynge first observed that “no mandatory stay [is] required under the AIA for grants of inter partes reexaminations, and the traditional three-part test to determine whether a stay is appropriate still applies. Nevertheless, the present analysis must address new events that have occurred since the original denial of defendant’s motion to stay, specifically the grant of the inter partes reexamination, and the effect of the new AIA standard on the application of the factors regarding a stay. ” Id. at 6-7. The AIA altered the standard for the grant of inter partes reexamination from requiring “the Director to find a substantial new question of patentability affecting any claim” to requiring a determination that there is “a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” Id. at 4 (internal citations and quotation marks omitted).

Turning to the three-part test, Judge Thynge first concluded that the status of the litigation did not favor a stay. Id. at 9. While the case was in its early phases, “the parties here [were] well into discovery, and significant deadlines [were] scheduled in the coming months.” Id. at 8-9. Additionally, the reexamination proceedings were at an early stage. Id. at 9. These factors all weighed against granting a stay. Id. As to simplification of issues, Judge Thynge concluded that “simplification weigh[ed] more strongly in favor of a stay” than when defendant filed its first motion. Id. at 10. “Moreover, reexamination was granted under the new heightened standard of the AIA, which means defendant is reasonably likely to prevail on invalidity. . . . Reexamination [would therefore] serve to simplify certain issues regarding validity. Further, because of the new standard, and since all claims of the [patent-in-suit] are found invalid on anticipation and obviousness, it may be more likely amendments to the claims of the patent will occur as a result of reexamination.” Id. at 10-11.

Finally, Judge Thynge concluded that plaintiff would be unduly prejudiced if a stay was granted, which was the “most substantial and important issue.” Id. at 11. Regarding the impact of the stage of the reexamination proceedings on the prejudice analysis, defendant argued that “the PTO is statutorily mandated to handle inter partes reexamination proceedings expeditiously and with special dispatch.” Id. at 14 (internal citations and quotation marks omitted). But Judge Thynge observed that “[i]n light of the recent passage of the AIA, it is unclear how such requirements will affect the time frame of the reexamination process.” Id. Therefore, as the reexamination process was in its early stages, this factor did not favor a stay. Id. As in the previous recommendation, Judge Thynge observed that the plaintiff and defendant were direct competitors and that this “weigh[ed] heavily against granting a stay.” Id. at 15-16.

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Magistrate Judge Mary Pat Thynge recently issued a report recommending the denial of Amazon.com’s and its subsidiaries’ motions to dismiss claims relating to mobile applications used to read barcodes. Hand Held Prods., Inc. v. Amazon.com, Inc., et al., C.A. No. 12-768-RGA-MPT (D. Del. Feb. 6, 2012). The defendants moved to dismiss the claims as falling short of the requirements imposed by Form 18, as well as the Twombly/Iqbal plausibility standard, id. at 3-4, and further argued that because their applications do not “selectively capture” barcodes, and instead only “capture and decode barcode information,” they could not be found liable for indirect infringement. Id. at 2.

After quickly disposing of the defendants’ argument that the direct infringement claims were insufficient, id. at 9-11, the Court explained that the complaint stated a plausible claim that each defendant also induced infringement based on their encouragement of customers to download and use infringing barcode-reading applications. Id. at 11-14. The Court added that the complaint stated a plausible claim of contributory infringement by alleging that each defendant “sells or offer to sell a mobile application that is a material part of the ‘088 patent[,]”which, assuming the truth of all well-pled allegations, has no substantial noninfringing use. Id. at 14-15.

Finally, the Court recommended the denial of the defendants’ motion to dismiss the plaintiff’s willfulness claim, finding that “[s]ufficient facts are alleged to infer Defendants knew there was an objectively high likelihood that their continued actions would constitute infringement.” Id. at 16.

In conclusion, the Court emphasized that the defendants’ motion to dismiss appeared, in reality, to be an attempt to “surreptitiously have the court conduct claim construction as part of its analysis under Rule 12(b)(6).” Id. at 16-17. The Court would not do this, of course, and explained that “[t]he analysis required is not to resolve disputed facts, nor decide the merits; rather, the examination is limited to testing the sufficiency of the complaint.” Id. at 17.

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Magistrate Judge Mary Pat Thynge recently granted a defendant’s motion seeking early claim reduction, and a plaintiff’s corresponding motion to limit the number of prior art references relied upon by the defendant. Masimo Corp. v. Philips Electronics N. Am. Corp., C.A. No. 09-080 (D. Del. Jan. 23, 2013). As the Court explained, “more than 39 claim terms are proposed for construction: 95 claims are asserted by [the plaintiff] on seven patents, averaging more than 12 claims per patent, making this litigation unwieldy.” Id. at 8.

The plaintiff proposed that in order to narrow the issues to be tried to the jury, it would be appropriate to limit the number of claims to be construed, and then following the Markman decision for the parties to meet and confer and agree upon a reduction of the claims asserted and prior art references relied upon. Following summary judgment decisions, under the plaintiff’s proposal, the parties would again meet and confer to further reduce the claims asserted and prior art references relied upon. Id. at 7. The Court rejected this proposal based on a review of the parties’ history in earlier litigation: “depending on the parties’ discretion to reduce the claims at issue until sometime after summary judgment is decided is at best doubtful, and will not simplify the matter. The fairer and more effective approach is to limit both the number of claim terms to be construed and the number of asserted claims.” Id. at 8.

The Court found that “early claim reduction is warranted before claim construction briefing and summary judgment motions are filed. In light of the analysis herein, including the breakdown between the number of presently asserted independent and dependent claims, the related subject matter of the patents, the genealogy of the asserted patents and the relationship among them, the previous claim construction decisions, and the filed summary judgment motions, [the plaintiff] is ordered to identify thirty (30) claims that are representative of the claims presently at issue from any or all of its asserted patents.” Id. at 12. In addition, the Court ordered the parties to limit the claims to be construed to “no more than twenty … taking into account terms that would be unfamiliar or confusing to the jury or unclear or ambiguous in the context of the claim.” Id. at 13. The Court added that following the reduction in reduction of claims and terms to be construed, the defendant must “identify no more than 40 prior art references, and shall provide its invalidity contentions with charts … for each prior art reference.” Id. at 15. The Court explained that these ordered limitations were within the Court’s discretion, and were consistent with the Federal Circuit’s decisions in In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303 (Fed. Cir. 2011) and Stamps.com Inc. v. Endica, Inc., 437 Fed. Appx. 897 (Fed. Cir. 2011), because additional claims could be added at a later date upon a showing of good cause such that the limitations were not immutable. Id. at 8, 11, 15.

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Magistrate Judge Mary Pat Thynge has issued a report and recommendation on a Fed. R. Civ. P. 37 motion regarding a violation of the Court’s Protective Order. Defendant Apple brought the motion against Plaintiff MobileMedia Ideas (“MMI”), alleging that MMI’s expert did not directly review source code on a designated computer as provided in the Protective Order. Rather, Apple alleged, a non-testifying consultant printed Apple’s source code and provided it to MMI’s expert. Apple additionally alleged that a second expert also reviewed a printed copy of source code and made copies of the source code other than for purposes “reasonably necessary” to the preparation of an expert report. Judge Thynge found a violation of the Protective Order, took steps to limit future access to the source code, and allowed the parties to brief the issue of awarding fees and costs. MobileMedia Ideas LLC v. Apple Inc., C.A. No. 10-258-SLR/MPT, at 1-2 (D. Del. Oct. 31, 2012).

Considering the parties’ submissions on a fee award, Judge Thynge called “MMI’s interpretation of the Protective Order . . . dizzying” and determined that reasonable expenses should be awarded for MMI’s violation. She explained that MMI’s argument that its violation had been “substantially justified” depended on defining the term “Receiving Party” in the Protective Order in two different and inconsistent ways: “MMI cannot have two interpretations of Receiving Party—one to argue no violation and another to argue why its violation was substantially justified to avoid the imposition of reasonable expenses. MMI’s approach is ‘heads I win, tails you lose,’ and it is not entitled to switch its argument after the court determined a violation of a discovery order occurred to justify why sanctions should not be imposed.” She concluded, “with the differing applications of ‘Receiving Party’ propounded by MMI, substantially justified has not been met under Rule 37, and reasonable expenses are warranted.” Id. at 5. She therefore recommended the awarding of attorneys’ fees and costs for Apple’s counsel and found that most of the fees requested by Apple were reasonable and allowable under Rule 37.

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Magistrate Judge Mary Pat Thynge recently issued a report recommending the denial of a motion to transfer a case to the Northern District of California based on an evaluation of the considerations outlined by the Third Circuit in Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995). Trueposition, Inc. v. Polaris Wireless, Inc., C.A. No. 12-646-RGA-MPT (D. Del. Oct. 25, 2012). Judge Thynge recognized that the Federal Circuit’s decision in In re Link_A_Media Devices Corp., 662 F.3d 1221 (Fed. Cir. 2011) (previously discussed here) provided guidance for the Court’s consideration of the Jumara factors, but added that “the decision has not altered the fundamental fact that ‘Section 1404(a) is intended to place discretion in the district court to adjudicate motions to transfer . . . .’” Id. at 3 (quoting Intellectual Ventures I LLC v. Altera Corp., 842 F. Supp. 2d 744, 754 (D. Del. 2012) (previously discussed here)).

With regard to the Jumara factors, the defendant emphasized that the plaintiff’s choice of forum should be given little weight because the plaintiff lacked any meaningful connection to Delaware—having no offices or employees in the state. The Court disagreed, explaining, “even if Delaware is not considered [the plaintiff’s] home turf, ‘[n]onetheless [its] incorporation in Delaware represents a rational and legitimate reason to choose to litigate in the state,’ by opting ‘to avail [itself] of the rights, benefits, and obligations that Delaware law affords.’” Id. at 6-7 (footnotes omitted). As a result, the Court explained that the plaintiff’s “choice of Delaware as its preferred forum is entitled to, at minimum, significant deference.” Id. at 7 (quoting Intellectual Ventures, 842 F. Supp. 2d at 754). Although the defendant provided legitimate reasons it preferred to litigate in the Northern District of California—which was the location of its headquarters, product development, almost all employees, all documents, and potential third party witnesses—the Court explained, “Defendant’s choice weighs in favor of transfer, however this factor is not provided the same weight as plaintiff’s preference.” Id.

The Court also explained, with regard to whether the Northern District of California was more convenient for the parties than the District of Delaware, that “[u]nless the defendant is truly regional in character – that is, it operates essentially exclusively in a region that does not include Delaware – transfer is often inappropriate.” Id. at 9 (internal quotation marks omitted). Here, the Court noted that both parties were multi-national corporations with worldwide business activities and interests. Id. at 10. Because neither party convincingly made the case that it would be inconvenienced in either the District of Delaware or the Northern District of California, the Court explained that “incorporation in Delaware tips the balance under this part of the convenience analysis. Given that both parties were incorporated in Delaware, they had both willingly submitted to suit there, which weighs in favor of keeping the litigation in Delaware.” Id. (internal quotation marks omitted).

As for the convenience of potential witnesses, including third party witnesses, the Court noted that only the defendant made a case that its preferred forum was more convenient, as the plaintiff failed to identify any witness who might be unavailable in the Northern District of California. Id. at 12. However, the Court noted that “[t]his factor … warrants limited weight since unavailability and lack of cooperation by non-party witnesses are not presumed.” Id. at 12-13 (citing Ivoclar Vivident AG v. 3M Co., No. 11-1183-GMS-SRF (D. Del. June 22, 2012) (“The practical impact of this factor is limited by the fact that few civil cases proceed to trial, and at trial, few fact witnesses testify live.”)). The Court viewed similarly the location of relevant books and records, explaining that although they were mostly located in the Northern District of California, there was no indication that it would be unduly burdensome to bring them to the District of Delaware, if needed, in light of technological advances. Id. at 14.

Finally, the Court explained that none of the public interest factors weighed in favor of transfer, and one factor especially weighed in favor of keeping the case in the District of Delaware. Citing a Federal Circuit decision, the Court explained that the public policy of the fora weighed in favor of keeping the litigation in the District of Delaware “[g]iven that both parties were incorporated in Delaware, [and] they had both willingly submitted to suit” in Delaware. Id. at 17 (quoting Micron Technology, Inc. v. Rambus, Inc. 645 F.3d 1311, 1332 (Fed. Cir. 2011). On balance, Magistrate Judge Thynge found that transfer was not appropriate in this case, and recommended that the Court deny the defendant’s motion because the “defendant has failed to satisfy its burden of showing that the Jumara factors weigh strongly in favor of transfer.” Id. at 18 (citing Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (Fed. Cir. 1970) (“[U]nless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff’s choice of forum should prevail.”)).

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Judge Andrews and Magistrate Judge Thynge have issued orders resolving numerous pre-trial issues in the past few weeks in the patent infringement litigation between St. Jude Medical and Volcano Corp. related to technology for diagnosis of heart disease. In addition to rulings on claim construction and exclusion of prior art, Judge Thynge has also recently considered St. Jude’s request to exclude portions of Volcano’s expert reports due to spoliation of evidence and Judge Andrews has considered Volcano’s motions to exclude evidence and testimony related to secondary considerations of non-obviousness.

Judge Thynge considered a request by St. Jude to exclude “portions of Volcano’s expert reports based on Volcano’s purported ‘unilateral destructive testing and spoliation of a unique piece of evidence.” See St. Jude Med. Cardiology Div., Inc. v. Volcano Corp., C.A. No. 10-631-RGA-MPT (D. Del. October 9, 2012). Volcano’s expert reports relied on this testing, and St. Jude alleged that it had no notice of the pending dissection of the evidence and no opportunity to conduct its own testing on any similar piece of evidence. Judge Thynge concluded that “St. Jude did not understand Volcano’s experts were dissecting the [evidence, but] . . . Volcano did not willfully conceal the dissection prior to serving [the expert] reports.” Nevertheless, “[b]ecause Volcano altered the [evidence], and did so without St. Jude understanding that alteration would occur, the court [found] there [had] been spoliation.”

Despite finding spoliation of evidence, Judge Thynge did not exclude Volcano’s expert reports. She determined that “Volcano’s exclusive possession of the [evidence], and St. Jude’s inability to prevent, or object to . . . dissection thereof, weighs in favor of finding Volcano ‘at fault’ for altering that evidence.” Nevertheless, St. Jude’s expert was able to “form strong opinions about [the evidence] from examination of the many photographs included in the . . . report documenting the dissection.” Therefore, “the court determine[d] Volcano’s actions . . . did not cause prejudice to St. Jude sufficient to strike portions of the [expert] reports addressing that dissection.” Accordingly, Judge Thynge denied St. Jude’s motion to strike.

Judge Andrews addressed evidence of secondary considerations of non-obviousness. In addition to finding that certain studies could be relevant to secondary considerations and should be admitted, Judge Andrews considered testimony of an expert regarding secondary considerations. See St. Jude Med. Cardiology Div., Inc. v. Volcano Corp., C.A. No. 10-631-RGA-MPT (D. Del. October 12, 2012). He concluded that evidence that “each generation of St. Jude's products . . . embod[ies] its latest patent” would be insufficient to show the required “nexus” between secondary considerations and the patented invention. Rather, Judge Andrews stated, “there has to be more specific testimony” showing “that any secondary consideration is the result of the patented invention, and not the result of other factors, such as the reputation of the maker, features of the device that were known in the prior art, etc.” Because this proffer was insufficient, Judge Andrews concluded that St. Jude “should not discuss the . . . studies or [the] likely [expert] testimony during its opening. The Court [did] not, however, prohibit[] the Plaintiff from attempting to lay the appropriate foundation during testimony.”

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